State Sovereignty and Self-defence in Cyberspace

• Author: Pallavi Khanna
• Position: High Court of Delhi (New Delhi, India)
• Pages: 139-154

BRICS LAW JOURNAL Volume V (2018) Issue 4

STaTE SoVEREIGnTY anD SELF-DEFEnCE

In CYBERSPaCE

PALLAVI KHANNA,

High Court of Delhi (New Delhi, India)

DOI: 10.21684/2412-2343-2018-5-4-139-154

Given the increasing role and use of cyberspace in our daily lives, it is important to consider

the large-scale dynamics of the cyber forum. Shifting the focus from individuals to nation

states as participants that engage in activities in cyberspace raises doubts over the status of

nations in this domain. Do they continue to remain sovereign entities on such a platform?

Do they have the right to defend themselves against attacks from other nations? These

questions have been subject to a lot of debate in the context of international law. The

aim of this paper is to study the implications of the principle of state sovereignty and self-

defence in cyberspace. The paper focuses on two prime considerations of sovereignty and

self-defence in the context of cyberspace and its link to international law. Thus the scope

is limited to concepts such as territorial jurisdiction, sovereignty, attribution and self-

defence. While doing so, the researcher seeks to answer questions such as, Is international

law applicable to cyberspace? Can cyberspace be called a sovereign domain? Do principles

of territorial jurisdiction apply to cyberspace? How does the attribution mechanism work

in cyberspace? Under what circumstances are states permitted to exercise the right of

self-defence against cyber attacks? and What are the deciencies in international law

governing cyberspace?

Keywords: sovereignty; self-defence; jurisdiction; cyberspace; cyber attack; attribution;

international law.

Recommended citation: Pallavi Khanna, State Sovereignty and Self-Defence in Cyber-

space, 5(4) BRICS Law Journal 139–154 (2018).

BRICS LAW JOURNAL Volume V (2018) Issue 4 140

Introduction

“Here be lions,” an expression used by ancient cartographers to describe unex-

plored territories and dangers, would suit cyberspace if it was not merely a virtual

domain.1 Cyberspace is characterised as being something more than the internet.

It is a vast eld which aects a variety of human conduct. It is transnational in nature,

having no central authority and few points of control. It is largely facilitated via third

parties. Given the ubiquity of information and computer technology, the increasing

dependence on cyberspace is perceived as a security concern. Thus, states seek to

preserve their access and safeguard their dependence on cyberspace, and this often

entails a departure from set norms.

It has become a trend to classify cyberspace as a novel aspect of warfare, insulated

from international law and capable of being abused. Malicious governments and

institutions tend to exploit the cyber domain to attack global infrastructure and

critical cyber assets. The results of these operations range from the disruption of

governmental functions and nancial loss to the physical destruction of property,

strategic defence equipment, etc., and deaths as well.2

Cyberspace is not disjoined from state sovereignty. It requires physical

infrastructure to function and an entity to monitor its development. Since the

potential to cause harm is very real in cyberspace, it cannot be left ungoverned.

Cyberspace is also capable of challenging state sovereignty, since it can question the

state’s ability to regulate movement across borders. An individual in a given state can

freely enter another state through cyberspace and engage in harmful ac tivities in

the latter. In furtherance of their commitment to protect cyber borders, nation states

can take robust measures to regulate the information technology infrastructure that

operates within their domestic territory.3

However, the prospect of monitoring cyberspace has been the subject of

controversy and has not received general acceptance given its tendency to

compromise on potential human rights obligations.4

Through the course of this paper, the researcher seeks to understand the principles

of international law which govern the conduct of states in cyberspace by analysing

aspects of state sovereignty, response mechanisms and problems of attribution. The

1 Marco Roscini, World Wide Warfare – Jus ad bellum and the Use of Cyber Force, 14 Max Plank Yearbook

of United Nations Law 85, 86 (2010).

2 Michael N. Schmitt, Cyberspace and International Law: The Penumbral Mist of Uncertainty, H arvard

Law Review Forum, 5 April 2013 (Nov. 10, 2018), available at http://harvardlawreview.org/2013/04/

cyberspace-and-international-law-the-penumbral-mist-of-uncertainty/.

3 Andrew Liaropoulos, Power and Security in Cyberspace: Implications for the Westphalian State System

in Panorama of Global Security Environment 541, 545–546 (M. Majer et al. (eds.), Bratislava: Centre for

European and North Atlantic Aairs, 2011).

4 Eric T. Jensen, Cyber Sovereignty: The Way Ahead, 50(2) Texas International Law Journal 275, 297 (2015).